Article 370 Film Defamation Case: J&K High Court Stays Proceedings Against Aditya Dhar

Justice Moksha Khajuria Kazmi passed the interim order while hearing a petition filed by the film’s producers and their production company, challenging a complaint alleging defamation and the subsequent pre-cognizance notice issued by the Forest Magistrate, Srinagar on December 30, 2025.

The case stems from a complaint filed by a private individual named Ghulam Mohammad Shah who claimed that his photograph was used in Article 370 and that he was portrayed as a terrorist in the context of the film’s plot, thereby causing serious damage to his reputation. On this basis, the complainant sought prosecution of the petitioners under Section 356 of the Bharatiya Nyaya Sanhita (BNS), 2023, by filing a complaint under Section 210 of the BNSS.

At the outset, the High Court had allowed a connected application seeking exemption from filing certified copies of the impugned complaint and order, directing the petitioners to place them on record within two weeks.

Assailing the Magistrate’s order, senior counsel for the petitioners argued that the trial court had acted in complete disregard of Section 223(1) of the BNSS, which mandates that a Magistrate, before taking cognizance of an offence on a private complaint, must examine the complainant and witnesses on oath and reduce the substance of such examination to writing. Crucially, the proviso to the provision also requires that no cognizance be taken without giving the accused an opportunity of being heard.

It was contended that no sworn statement of the complainant or witnesses was recorded prior to issuance of notice and that the petitioners were neither supplied copies of the complaint nor any supporting material, rendering the opportunity of hearing illusory. Though this specific ground was not pleaded in the petition, the Court permitted the submission, noting that it raised a pure question of law.

The petitioners placed reliance on a 2025 judgment of the Allahabad High Court (2025), which authoritatively interpreted Section 223 BNSS and laid down the procedural sequence to be followed by Magistrates in complaint cases. The High Court also considered a recent decision of the Karnataka High Court reiterating that notice to the accused can only be issued after recording the sworn statement of the complainant and witnesses and that such notice must be accompanied by the relevant material to ensure a meaningful hearing.

On perusal of the trial court record, Justice Kazmi found substance in the petitioners’ grievance. The Court noted that while a pre-cognizance notice had been issued on December 30, 2025, directing the petitioners to appear on February 7, 2026, there was nothing on record to show that the complainant or any witness had been examined on oath, as required by law.

The Court observed that issuance of notice without following the statutory “procedural drill” under Section 223 BNSS was unsustainable. It also took exception to the form of the notice issued by the Magistrate, describing it as a “blank notice” with unfilled particulars, and cautioned trial courts to ensure such lapses do not recur.

Relying on consistent judicial views taken by the Allahabad, Karnataka and Kerala High Courts, as well as a coordinate Bench of the J&K High Court, the Court held that the impugned order could not be sustained in the eyes of law.

Accordingly, notice was issued to the respondent, and the matter was listed for further hearing on March 23, 2026.

In the meantime, the High Court stayed all proceedings in the complaint pending before the Forest Magistrate, Srinagar, subject to objections by the other side. The trial court record was directed to be returned.